Prosecutors have identified all but two of the 10 men Jerry Sandusky is accused of sexually assaulting as children. All eight of those known victims finished testifying Thursday, so those of us following the trial are hereby spared from any more nauseating details of the former Penn State defensive coordinator's alleged abuse.
Yet as credible as those victims were, and as overwhelming as their testimony was, there is still room for Sandusky's defense team to maneuver legally, and that's because Pennsylvania's criminal statutes are still uniquely, stupidly stuck in the past.
We told you about this in December, thanks to some terrific reporting by Philadelphia Weekly's Tara Murtha, who at the time pointed out two ways in which accused sex offenders like Sandusky can benefit from Pennsylvania law at trial:
1. Trial judges are required to instruct jurors to factor in how long it took for victims to report their allegations of sex abuse to authorities, even though that time difference is known to have no relevance to the truth of their claims.
2. Expert testimony in sex assault cases is not permitted.
As Murtha has written, federal courts allow experts to testify about the behaviors of both victims and assailants in sexual assault cases. So does the military. So does D.C. And so does every other state in the country. Just not the one in which Jerry Sandusky is accused of committing his alleged crimes. So why is this now worth repeating? Because in April, Murtha wrote another story highlighting the fact that the state Senate failed to take action to close those legal loopholes—even though a bill that would allow for expert testimony in sex-abuse cases had already passed the state House last year by a 197-0 margin.
You'd think, after all the publicity the Sandusky case garnered last fall, that Pennsylvania lawmakers would have been moved to act swiftly to bring these statutes into the 21st century. But you'd be wrong.
As it sat gathering dust, state Sen. Stewart Greenleaf, chairman of the Judiciary Committee, offered various tone-deaf reasons for the stall.
In December, to the surprise of both of the bill's sponsors, Greenleaf told PW he needed to "fine-tune" the legislation. In February, Patriot-News reporter Sara Ganim, who broke the Sandusky story, wrote that the reason for the delay was that "Greenleaf wants to make sure any bill allows for the defense to bring an expert into court, too."
After more pressure from groups like Pennsylvania Coalition Against Rape, HB1264 finally passed out of committee on March 27—but it still isn't law and, with a 60-day effective date along with the news today that the trial will not be delayed again, it will not be in effect during the Sandusky trial.
Likewise, neither chamber of the legislature made any effort to do anything about the backward-ass language that's been codified into the state's jury instructions, which read as follows:
"Failure to Make Prompt Complaint in Certain Sexual Offenses: ‘The evidence of [name of victim]'s [failure to complain] [delay in making a complaint] does not necessarily make [his] [her] testimony unreliable, but may remove from it the assurance of reliability accompanying the prompt complaint or outcry that the victim of a crime such as this would ordinarily be expected to make.'"
Sandusky's attorney, Lawyerin' Joe Amendola, has made it clear he intends to pound away at the victims' credibility. And because of the legislature's inaction, he's got the law on his side.
Remember, only one of Sandusky's victims came forward just after the alleged abuse took place. Some continued to associate with him for years after the alleged assaults stopped, with at least one acknowledging he had lunched with Sandusky as recently as summer. Sandusky's defense claims he has something called "histrionic personality disorder," and on Friday Judge John Cleland issued an order allowing an expert to testify to that effect. As for the psychology of Sandusky's victims, Murtha wrote:
"In sexual-assault trials, psychology experts could advise jurors, for example, that it is common for child-sex-abuse victims to maintain relationships with the authority figures who attacked them and that it's also common for a victim to not reveal the abuse for years."
But in Pennsylvania, and in the case of Jerry Sandusky's victims specifically, none of that is in play.